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Decision No. 15,805

Appeal of YOEL WAGSCHAL, on behalf of his son MARTIN, from action of the Board of Education of the Washingtonville Central School District regarding transportation.

Decision No. 15,805

(August 1, 2008)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Washingtonville Central School District (“respondent”) denying transportation to his son, Martin, for the 2007-2008 school year.  The appeal must be dismissed.

On February 27, 2007, petitioner submitted an “Application for Transportation” to the district’s transportation office requesting that Martin be transported to United Talmudical Academy (“Academy”).  By letter dated March 2, 2007, the district’s supervisor of transportation (“supervisor”) denied petitioner’s request because Martin had not reached the age of five by December 1, 2006, a requirement for attending the district’s schools in the 2006-2007 school year.

On May 7, 2007, petitioner applied for Martin’s transportation to the Academy for the 2007-2008 school year.  By letter dated July 5, 2007, the supervisor denied this request because it was filed after the April 1 deadline.  This appeal ensued.

Petitioner contends that his original application was for the 2007-2008 year, but that the transportation office modified the form so that it read 2006-2007.  He further contends that the denial was based on discrimination.  Petitioner requests transportation for the 2007-2008 school year and seeks reimbursement for transportation expenses he incurred as a result of the denial.

Respondent denies petitioner’s allegations and asserts that petitioner has failed to state a claim for which relief can be granted.  Respondent argues that the appeal must be dismissed as untimely and for failure to exhaust administrative remedies.  Respondent further asserts that there was no prejudice directed toward petitioner and that, despite his late application, the district would have transported Martin if they could have done so without incurring additional costs.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).   Petitioner commenced this appeal on February 14, 2008, nine months after the May 2007 denial and more than seven months after the last action taken by the district.  Petitioner offers no good cause for his delay in commencing this appeal.  Accordingly, the appeal is untimely and must be dismissed.

Moreover, the appeal must be dismissed as moot to the extent petitioner requests transportation for the 2007-2008 school year.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).

As to petitioner’s request for reimbursement for transportation costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).